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WRITTEN CONSENT OF THE DIRECTORS OF
THE APACHE SOFTWARE FOUNDATION
TO
ACTION WITHOUT MEETING
The undersigned, being all of the directors of The Apache Software Foundation, aDelaware corporation (hereinafter called the "Corporation"), do hereby adopt, consent to andapprove the following resolutions by signing written consent thereto pursuant to Section 141 ofthe Delaware General Corporation Law.
1. Ratification and Adoption of Acts of Incorporator.
NOW, THEREFORE, BE IT RESOLVED, that the acts and conduct of the incorporator,Roy T. Fielding, in connection with the organization of the Corporation hereby areapproved, ratified and adopted by the Corporation as acts and conduct by and on behalf ofthe Corporation and are deemed to be in its best interests; and be it further
RESOLVED, that the organizational and other activities for which the incorporator wasresponsible have been completed, the incorporator hereby is relieved of any further dutiesand responsibilities in that regard, and the Corporation hereby agrees to indemnify andhold harmless the incorporator for any loss, liability or expense arising from the acts orconduct of the incorporator in such capacity; and be it further
2. Adoption of Bylaws.
RESOLVED, that the Bylaws attached hereto as Exhibit A be and hereby are in allrespects approved and adopted as the Bylaws of this Corporation for the regulation of itsbusiness and affairs, and said Bylaws shall be made a part of the minute book of theCorporation along with these minutes; and be it further
3. Adoption of Corporate Seal.
RESOLVED, that a seal, circular in form and bearing the inscription "The ApacheSoftware Foundation - Corporate Seal - Delaware", hereby is approved, ratified andadopted as the corporate seal of the Corporation; and be it further
4. Adoption of Form of Membership Application.
RESOLVED, that the form of membership application attached hereto as Exhibit B be andhereby is approved, ratified and adopted as the form of the membership application to becompleted by prospective members of the Corporation.
5. Creation of Apache HTTP Server Committee
WHEREAS, the undersigned directors deem it to be in the best interests of theCorporation and consistent with the Corporation’s purpose to establish a ProjectManagement Committee charged with the creation and maintenance of open source HTTPserver software for distribution at no charge to the public.
NOW, THEREFORE, BE IT FURTHER RESOLVED, that a Project ManagementCommittee, to be known as the “Apache HTTP Server Committee”, be and hereby isestablished pursuant to Bylaws of the Corporation; and be it further
RESOLVED, that the Apache HTTP Server Committee be and hereby is responsible forthe creation and maintenance of HTTP server software based on HTTP server software tobe licensed to the Corporation; and be it further
RESOLVED, that the office of “Vice President, Apache HTTP Server” be and hereby iscreated, the person holding such office to serve at the Direction of the Board of Directorsas the chairman of the Apache HTTP Server Committee, and to have primaryresponsibility for management of the projects within the scope of responsibility of theApache HTTP Server Committee; and be it further
RESOLVED, that the persons listed immediately below, each of whom have applied formembership in the Corporation, be and hereby are appointed to serve as the initialmembers of the Apache HTTP Server Committee effective upon their admission asmembers of the Corporation.
Brian Behlendorf Ken CoarMark Cox Lars EilebrechtRalf S Engelschall Roy T FieldingDean Gaudet Ben HydeJim Jagielski Alexei KosutMartin Kraemer Ben LaurieDoug MacEachern Aram MirzadehSameer Parekh Cliff SkolnickMarc Slemko Bill StoddardPaul Sutton Randy TerbushDirk-Willem van Gulik
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6. Creation of Apache Conferences Committee
WHEREAS, the undersigned directors deem it to be in the best interests of theCorporation and consistent with the Corporation’s purpose to establish a ProjectManagement Committee charged with the procurement and oversight of officiallysponsored Conferences related to the use and development of the Corporation’s opensource software.
NOW, THEREFORE, BE IT FURTHER RESOLVED, that a Project ManagementCommittee, to be known as the “Apache Conferences Committee”, be and hereby isestablished pursuant to Bylaws of the Corporation; and be it further
RESOLVED, that the Apache Conferences Committee be and hereby is responsible forprocurement and oversight of officially sponsored Conferences related to the use anddevelopment of the Corporation’s open source software; and be it further
RESOLVED, that the office of “Vice President, Apache Conferences” be and hereby iscreated, the person holding such office to serve at the Direction of the Board of Directorsas the chairman of the Apache Conferences Committee, and to have primary responsibilityfor management of the projects within the scope of responsibility of the ApacheConferences Committee; and be it further
RESOLVED, that the persons listed immediately below, each of whom have applied formembership in the Corporation, be and hereby are appointed to serve as the initialmembers of the Apache Conferences Committee effective upon their admission asmembers of the Corporation.
Ken Coar Lars EilebrechtJim Jagielski Ben LaurieRandy Terbush
7. Appointment of Officers.
NOW, THEREFORE, BE IT FURTHER RESOLVED, that the persons listedimmediately below hereby are appointed to the offices designated opposite their respectivenames, each to serve in accordance with and subject to the direction of the Board ofDirectors and the Bylaws of the Corporation until death, resignation, retirement, removalor disqualification, or until a successor is appointed.
Name Office
Roy T. Fielding Chairman of the Board
Brian Behlendorf President
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Jim Jagielski Executive Vice-President and Secretary
Ben Hyde Vice-President, Apache HTTP Server
Ken Coar Vice-President, Apache Conferences
Randy Terbush Treasurer
8. Payment of Fees, Taxes and Reimbursements.
NOW, THEREFORE, BE IT FURTHER RESOLVED, that the officers of theCorporation hereby are authorized and directed to pay and discharge all taxes, fees andother expenses heretofore incurred or hereafter to be incurred as a result of and inconnection with the organization of the Corporation, and to reimburse the incorporator,the officers and all other persons for all expenditures heretofore made by them in suchconnection; and be it further
9. Procurement and Maintenance of Books and Records.
RESOLVED, that the officers of the Corporation hereby are authorized and directed toprocure and maintain the necessary corporate books and records and to open and maintainrecords in accordance with the Bylaws of the Corporation and the laws of the State ofDelaware, as well as the laws of any other applicable jurisdiction; and be it further
10. Employment of Professional Services.
RESOLVED, that in connection with discharging their respective duties as officers of theCorporation, including, without limitation, in connection with the maintenance,preparation and filing of books, records, reports and returns, the officers of theCorporation hereby are authorized and directed to procure, in their discretion, such legal,accounting and other professional services and assistance as they may reasonably requirein order to properly discharge the duties of said offices, and that the reasonable expensestherefor shall be charged to and paid for by the Corporation; and be it further
11. Banking Resolutions.
RESOLVED, that the Corporation open one or more deposit accounts with the NationalBank of Commerce, 1248 O Street, Lincoln, NE 68508 (the "Bank"); and be it further
RESOLVED, that the officers named immediately below are authorized to sign checksand other orders for the withdrawal of funds from each such account in accordance withthis resolution.
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Name Title
Brian Behlendorf President
Jim Jagielski Executive Vice-President and Secretary
Randy Terbush Treasurer
NOW THEREFORE, BE IT FURTHER RESOLVED, that the issuance of checks orother orders for the withdrawal of funds from such accounts in excess of US$5,000 or itsequivalent (except for checks between Corporation accounts) shall require the signaturesof two of the above-named authorized officers of the Corporation; and be it further
RESOLVED, that the standard form of banking resolutions provided by the Bank,reflecting the above signatory requirements as to each such account, hereby are in allrespects approved, ratified and adopted with respect to each such account with the Bank,and the officers of the Corporation are hereby authorized and directed to certify to theBank the approval, ratification and adoption of said resolutions and to file a true copy ofthe same in the minute book of the Corporation immediately following this Consent, andto execute such other documents and take such other actions as may be necessary inconnection with the opening of each such account; and be it further
12. Fiscal Year.
RESOLVED, that the fiscal year of the Corporation shall end on April 30 of each calendaryear.
13. Initial Members.
WHEREAS, each of the persons listed immediately below (the "Applicants") has appliedfor membership in the Corporation.
Brian Behlendorf Ken CoarMark Cox Lars EilebrechtRalf S Engelschall Roy T FieldingDean Gaudet Ben HydeJim Jagielski Alexei KosutMartin Kraemer Ben LaurieDoug MacEachern Aram MirzadehSameer Parekh Cliff SkolnickMarc Slemko Bill StoddardPaul Sutton Randy TerbushDirk-Willem van Gulik
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NOW, THEREFORE, BE IT FURTHER RESOLVED, that the membership applicationsof the Applicants be and hereby are approved, ratified and adopted and the Applicantshereby are admitted as members of the Corporation effective fifteen days after the officersof the Corporation give notice of this admission to the Applicants, being the sole membersof the Corporation; and be it further
RESOLVED, that the Secretary and the other officers of the Corporation be and herebyare authorized and directed to give notice of the admission to the Applicants; and be itfurther
14. Principal Office.
RESOLVED, that the principal office of the Corporation shall be located at 1901 MunseyDrive, Forest Hill, Maryland 21050-2747, USA.
The undersigned, by executing this Written Consent in the space provided below, dohereby direct that this document be filed with the minutes and proceedings of the Corporation,and agree that the actions set forth in the foregoing resolutions shall have the same force andeffect as if taken at a duly constituted meeting of the Board of Directors of the Corporation.
The above actions shall be effective as of the day of , 1999.
Directors:
______________________________ ______________________________Brian Behlendorf Ken Coar
______________________________ ______________________________Roy T. Fielding Ben Hyde
______________________________ ______________________________Jim Jagielski Ben Laurie
______________________________ ______________________________Sameer Parekh Randy Terbush
______________________________Dirk-Willem van Gulik
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Exhibit A
BYLAWSOF
THE APACHE SOFTWARE FOUNDATION
ARTICLE I
Business Offices
The corporation shall have such offices either within or outside the State of Delaware andwithin or outside the United States, as the Board of Directors may from time to time determine oras the business of the corporation may require.
ARTICLE II
Registered Offices and Registered Agents
Section 2.1. Delaware. The address of the initial registered office in the State ofDelaware and the name of the initial registered agent of the corporation at such address are setforth in the Certificate of Incorporation. The corporation may, from time to time, designate adifferent address as its registered office or a different person as its registered agent, or both;provided, however, that such designation shall become effective upon the filing of a statement ofsuch change with the Secretary of State of the State of Delaware as is required by law.
Section 2.2. Other States. In the event the corporation desires to qualify to do business inone or more states other than Delaware, the corporation shall designate the location of theregistered office in each such state and designate the registered agent for service of process atsuch address in the manner provided by the law of the state in which the corporation elects to bequalified.
ARTICLE III
Meetings of Members
Section 3.1. Place of Meetings. Meetings of the members shall be held at the principaloffice of the corporation or any other place (within or outside the State of Delaware and within oroutside the United States) designated in the notice of the meeting.
Section 3.2. Annual Meeting. A meeting of the members shall be held annually at suchtime as the Board of Directors may determine (which shall be, in the case of the first annualmeeting, not more than thirteen (13) months after the organization of the corporation and, in thecase of all other meetings, not more than thirteen (13) months after the date of the last annual
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meeting), at which annual meeting the members shall elect a Board of Directors and transact otherproper business.
Section 3.3. Special Meetings. Special meetings of the members shall be held whendirected by the Chairman, President or the Board of Directors, or when requested in writing bynot less than ten percent (10%) of all members entitled to vote at the meeting. The call for themeeting shall be issued by the Secretary, unless the Chairman, President, Board of Directors ormembers requesting the meeting shall designate another person to do so.
Section 3.4. Notice. Written notice stating the place, date and hour of the meeting and, inthe case of a special meeting, the purpose or purposes for which the meeting is called, shall bedelivered not less than ten (10) nor more than sixty (60) days before the date of the meeting,either personally or by first class mail, by or at the direction of the Chairman, President, theSecretary, or the officer or persons calling the meeting, to each member of record entitled to voteat such meeting. If mailed, such notice shall be deemed to be delivered when deposited in theUnited States mail addressed to the member at his or her address as it appears in the membershiprecords of the corporation, with postage thereon prepaid.
Notwithstanding the above paragraph, the corporation shall not be required to give noticeof a members' meeting to any member to whom notice of two consecutive annual meetings, andall notices of meetings or of the taking of action by written consent without a meeting to suchmember during the period between such two consecutive annual meetings, have been mailedunder the procedures outlined above and have been returned undeliverable. Any action or meetingwhich shall be taken or held without notice to such member shall have the same force and effectas if such notice had been duly given. If any such member delivers to the corporation a writtennotice setting forth his or her then current address, the requirement that notice be given to suchmember shall be reinstated.
Section 3.5. Notice of Adjourned Meetings. When a meeting is adjourned to another timeor place, the corporation shall not be required to give any notice of the adjourned meeting if thetime and place to which the meeting is adjourned are announced at the meeting at which theadjournment is taken. At the adjourned meeting, any business may be transacted that might havebeen transacted at the original meeting. If, however, the adjournment is for more than thirty (30)days, or if after the adjournment the Board of Directors fixes a new record date for the adjournedmeeting, a notice of the adjourned meeting shall be given as provided in Section 3.4 above, toeach member of record on the new record date entitled to vote at such meeting.
Section 3.6. Waiver of Notice. Whenever notice is required to be given to any member, awaiver thereof in writing, signed by the person or persons entitled to such notice, whether beforeor after the time stated therein, shall be the equivalent to the giving of such notice. Attendance bya person at a meeting shall constitute a waiver of notice of such meeting, except when the personattends a meeting for the express purpose of objecting, at the beginning of the meeting, to thetransaction of business because the meeting is not lawfully called or convened. Neither thebusiness to be transacted at, nor the purpose of any regular or special meeting of the membersneed be specified in the written waiver of notice.
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Section 3.7. Fixing Record Date.
(a) For the purpose of determining members entitled to notice of or to vote at anymeeting of members or any adjournment thereof, the Board of Directors may fix a record date,which record date shall not precede the date upon which the resolution fixing the record date isadopted by the Board of Directors, and which record date shall not be more than 60 nor less than10 days before the date of such meeting. If no record date is fixed by the Board of Directors, therecord date for determining members entitled to notice of or to vote at a meeting of membersshall be at the close of business on the day next preceding the day on which notice is given, or, ifnotice is waived, at the close of business on the day next preceding the day on which the meetingis held. A determination of members of record entitled to notice of or to vote at a meeting ofmembers shall apply to any adjournment of the meeting; provided, however, that the Board ofDirectors may fix a new record date for the adjourned meeting.
(b) For purposes of determining the members entitled to consent to corporate action inwriting without a meeting, the Board of Directors may fix a record date, which record date shallnot precede the date upon which the resolution fixing the record date is adopted by the Board ofDirectors, and which date shall not be more than 10 days after the date upon which the resolutionfixing the record date is adopted by the Board of Directors. If no record date has been fixed bythe Board of Directors, the record date for determining members entitled to consent to corporateaction in writing without a meeting, when no prior action by the Board of Directors is required bythe General Corporation Laws of the State of Delaware, shall be the first date on which a signedwritten consent setting forth the action taken or proposed to be taken is delivered to thecorporation by delivery to its registered office in the State of Delaware, its principal place ofbusiness or an officer or agent of the corporation having custody of the books in whichproceedings of meetings of members are recorded. Delivery made to a corporation's registeredoffice shall be by hand or by certified or registered mail, return receipt requested. If no recorddate has been fixed by the Board of Directors and prior action by the Board of Directors isrequired by the General Corporation Law of the State of Delaware, the record date fordetermining members entitled to consent to corporate action in writing without a meeting shall beat the close of business on the day on which the Board of Directors adopts the resolution takingsuch prior action.
(c) For purposes of determining the members entitled to exercise any rights, or for thepurpose of any other lawful action, the Board of Directors may fix a record date, which recorddate shall not precede the date upon which the resolution fixing the record date is adopted, andwhich record date shall be not more than 60 days prior to such action. If no record date is fixed,the record date for determining members for any such purpose shall be at the close of business onthe day on which the Board of Directors adopts the resolution relating thereto.
Section 3.8. Record of Members Having Voting Rights. The officer or agent havingcharge of the membership records of the corporation shall prepare and make, at least ten (10)days before each meeting of members, a complete list of the members entitled to vote at suchmeeting, arranged in alphabetical order, and showing the name, address, telephone number,
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facsimile number and electronic mail address of each member. For a period of ten (10) days priorto such meeting, the list shall be open to the examination of any member, for any purposegermane to the meeting, during ordinary business hours, either at a place within the city wheresuch meeting is to be held, which place shall be specified in the notice of the meeting, or if not sospecified, at the place where such meeting is to be held. The list shall also be produced and keptopen at the time and place of the meeting and shall be subject to inspection by any member at anytime during the meeting. Upon the willful neglect or refusal of the directors to produce such a listat any meeting for the election of directors, such directors shall be ineligible for election to anyoffice at such meeting.
Section 3.9. Member Quorum. Except as otherwise required by law, by the Certificate ofIncorporation or by these Bylaws, one-third (1/3) of the members entitled to vote, represented inperson or represented by proxy, shall constitute a quorum at a meeting of members. When aspecified item of business is required to be voted on by a class of members (if the members aredivided into classes), one third (1/3) of such class of members, represented in person orrepresented by proxy, shall constitute a quorum for the transaction of such item of business bythat class of members. If a quorum is present, the affirmative vote of a majority of the membersrepresented at the meeting and entitled to vote on the subject matter shall be the act of themembers, unless the vote of a greater number or voting by class is required by the GeneralCorporation Law of the State of Delaware or by the Certificate of Incorporation or by theseBylaws. The directors shall be elected by a plurality of the votes of the members present in personor represented by proxy at the meeting and entitled to vote on the election of directors. Where aseparate vote by class of members is required, the affirmative vote of a plurality of members ofsuch class represented at the meeting shall be the act of such class unless the vote of a greaternumber is required by the General Corporation Law of the State of Delaware, the Certificate ofIncorporation or these Bylaws.
After a quorum has been established at a members' meeting, the subsequent withdrawal ofmembers, so as to reduce the number of members in person or represented by proxy entitled tovote at the meeting below the number required for a quorum, shall not affect the validity of anyaction taken at the meeting or any adjournment thereof.
After a quorum has been established at a members' meeting, the subsequent admission ofnew members, so as to increase the number of members required for a quorum above the numberof members present in person or represented by proxy entitled to vote at the meeting, shall notaffect the validity of any action taken at the meeting or any adjournment thereof.
Section 3.10. Voting. Each member (except emeritus members) shall be entitled to onevote on each matter submitted to a vote at a meeting of the members, except as may otherwise beprovided in the General Corporation Law of the State of Delaware.
A member may vote either in person or by proxy executed in writing by the member or hisor her duly authorized attorney-in-fact.
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Section 3.11. Proxies. Every member entitled to vote at a meeting of members or toexpress consent or dissent to corporate action in writing without a meeting, or a member's dulyauthorized attorney-in-fact, may authorize another person or persons to act for him/her by proxy.
Every proxy must be signed by the member or his or her attorney-in-fact. No proxy shallbe valid after three (3) years from its date, unless otherwise provided in the proxy. All proxiesshall be revocable.
Section 3.12. Action by Members Without a Meeting. Any action required to be taken orwhich may be taken at any annual or special meeting of members of the corporation, may be takenwithout a meeting, without prior notice and without a vote, if a written consent setting forth theaction so taken shall be signed by members having not less than the minimum number of votesthat would be necessary to authorize or take such action at a meeting at which all membersentitled to vote thereon were present and voted; provided, however, that no written consent shallbe effective unless such consent (i) bears the date of signature by each member signing suchconsent and (ii) is delivered to the corporation within sixty (60) days of the date on which theearliest consent was delivered to the corporation. Prompt notice of the taking of the corporateaction without a meeting by less than unanimous written consent shall be given to those memberswho have not consented in writing.
ARTICLE IV
Members
Section 4.1 Admission of Members. To be eligible for membership, a person or entitymust be nominated by a current member of the corporation and must complete a writtenmembership application in such form as shall be adopted by the Board of Directors from time totime. The nomination and content of the membership application must be included in a notice tothe members, if any, of the corporation at least ten (10) days prior to any vote on the applicant'sadmission, which notice may be by electronic means. The initial members of the corporation shallbe admitted upon the affirmative vote of the Board of Directors of the Corporation at the initialmeeting of the Board of Directors. Thereafter, members of the corporation shall be admitted asmembers of the corporation only by a majority vote of the existing members of the corporation.
Section 4.2. Emeritus Members. An emeritus member is a former member whosemembership has been suspended and converted to emeritus status, either voluntarily or by actionof the members, such that all membership rights of the emeritus member, including the right tovote and be counted for purposes of quorum, are suspended and terminated until the emeritusmember’s membership is reinstated by subsequent action of the members.
Upon the effective date of conversion of the membership of any member to emeritusstatus, the membership, including all related voting rights, of such member shall be suspended,except that such emeritus member shall be entitled to attend (but not vote) at meetings of themembers, and the officers of the corporation shall attempt, in good faith, to continue to delivernotices of meetings of the members of the corporation to such emeritus member. References in
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these Bylaws to a "member" or to the "members" of the corporation shall not include any emeritusmember unless explicitly provided otherwise.
Section 4.3. Voluntary Conversion of Membership to Emeritus Status. Members mayconvert their membership to emeritus status at any time upon ten (10) days' written, signed noticedelivered to an officer of the corporation.
Section 4.4. Involuntary Conversion of Membership to Emeritus Status. Upon anaffirmative vote of a two-thirds majority of the members of the corporation, the membership of amember shall be converted into an emeritus membership.
Section 4.5. Reinstatement of Membership of Emeritus Members. Upon receipt of awritten request and a new membership application from an emeritus member and upon anaffirmative vote of a majority of the members of the corporation approving such membershipapplication, such emeritus member membership shall be reinstated as a full member of thecorporation, and shall be entitled to exercise all rights as a member of the corporation, includingall related voting rights.
Section 4.6. Voluntary Withdrawal from Membership. Members (including emeritusmembers) may withdraw from membership in the corporation at any time upon ten (10) days'written, signed notice delivered to an officer of the corporation.
Section 4.7. Termination from Membership. No member may have his, her or itsmembership terminated except by an affirmative vote of a two-thirds majority of the members ofthe corporation.
Section 4.8. Effect of Withdrawal or Termination of Membership. Upon any withdrawalor termination of the membership of any member, the membership, including all related votingrights, of such member shall be terminated. After a withdrawal or termination of the membershipof any member, or a conversion of the membership of any member to emeritus status, suchmember may reapply for membership in accordance with Section 4.1 of these Bylaws.
ARTICLE V
Directors
Section 5.1. Powers. The business and affairs of the corporation shall be managed by orunder the direction of the Board of Directors, which may exercise all such powers of thecorporation and do all such lawful acts and things as are not by statute or by the Certificate ofIncorporation or by these Bylaws specifically reserved to the members.
Section 5.2. Qualification. Directors need not be residents of Delaware or of the UnitedStates nor members of the corporation.
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Section 5.3. Compensation. The Board of Directors shall have authority to fix thecompensation of directors unless otherwise provided in the Certificate of Incorporation.
Section 5.4. Number. The corporation shall initially have nine (9) directors. Thereafter,the number of directors shall be fixed by the members at each annual meeting of members.
Section 5.5. Election and Term. Each person named in the Certificate of Incorporation orelected by the incorporator(s) at the organization meeting, as the case may be, as a member of theinitial Board of Directors shall hold office until the first annual meeting of members and until hisor her successor shall have been elected and qualified or until his or her earlier resignation,removal or death.
At the first annual meeting of members and at each annual meeting thereafter, themembers shall elect directors to hold office until the next succeeding annual meeting. Eachdirector shall hold office for the term for which he or she is elected and until his or her successorshall have been elected and qualified or until his or her earlier resignation, removal or death.
Section 5.6. Resignation and Removal of Directors. A director may resign at any timeupon written request to the corporation. Furthermore, any director or the entire Board ofDirectors may be removed, with or without cause, by a vote of the majority of the membersentitled to vote for the election of directors or as otherwise provided in the General CorporationLaw of the State of Delaware.
Section 5.7. Vacancies. Any vacancy occurring in the Board of Directors, including anyvacancy created by reason of an increase in the authorized number of directors, may be filled bythe affirmative vote of a majority of the remaining directors though less than a quorum of theBoard of Directors or by a sole remaining director. If there is more than one class of members,vacancies of directorships elected by such class may be filled by a majority of the directors electedby such class or by a sole remaining director. A director elected to fill a vacancy shall hold officeonly until the next election of directors by the members.
Section 5.8. Quorum and Voting. A majority of the number of directors fixed inaccordance with these Bylaws shall constitute a quorum for the transaction of business. The voteof a majority of the directors present at a meeting at which a quorum is present shall be the act ofthe Board of Directors.
Section 5.9. Executive and Other Committees. The Board of Directors, by resolutionadopted by a majority of the full Board of Directors, may designate an Executive Committee fromamong its members and such other committees consisting of at least one director as determined bythe Board of Directors from time to time. Each committee, to the extent provided in suchauthorizing resolution, shall have and may exercise all the power and authority of the Board ofDirectors in the management of the business and affairs of the corporation, as limited by the lawsof the State of Delaware.
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The Board of Directors, by resolution adopted in accordance with this section, maydesignate one or more directors as alternate members of any such committee, who may act in theplace and stead of any absent or disqualified member or members at any meeting of suchcommittee. In the absence or disqualification of any member of any such committee orcommittees, the member or members thereof present at any meeting and not disqualified fromvoting, whether or not they constitute a quorum, may unanimously appoint another member of theBoard of Directors to act at the meeting in the place of any such absent or disqualified member.
Section 5.10. Place of Meetings. Regular and special meetings of the Board of Directorsmay be held within or outside the State of Delaware and within or outside the United States.
Section 5.11. Time, Notice and Call of Meetings. Regular meetings of the Board ofDirectors shall be held immediately following the annual meeting of members each year and atsuch times thereafter as the Board of Directors may fix. No notice of regular directors' meetingsshall be required.
Special meetings of the Board of Directors shall be held at such times as called by theChairman of the Board, the President of the corporation, or any two (2) directors. Written noticeof the time and place of special meetings of the Board of Directors shall be given to each directorby either personal delivery, telegram, cablegram, or telefax at least two (2) days before themeeting, or by notice mailed to each director at least five (5) days before the meeting.
Notice of a meeting of the Board of Directors need not be given to any director who signsa waiver of notice, either before or after the meeting. Attendance of a director at a meeting shallconstitute a waiver of notice of such meeting and waiver of any and all objections to the place ofthe meeting, the time of the meeting, or the manner in which it has been called or conveyed,except when a director states, at the beginning of the meeting, any objection to the transaction ofbusiness because the meeting is not lawfully called or convened.
Members of the Board of Directors may participate in a meeting of such Board or of anycommittee designated by such Board by conference telephone or similar communicationsequipment by means of which all persons participating in the meeting can hear each other at thesame time. Participating by such means shall constitute presence in person at a meeting.
Section 5.12. Action Without a Meeting. Any action required or permitted to be taken at ameeting of the Board of Directors or of any committee thereof may be taken without a meeting ifall the members of the board or committee, as the case may be, consent thereto in writing, andsuch writing is filed with the minutes of the proceedings of the board or committee. Such consentshall have the same effect as a unanimous vote.
Section 5.13. Director Conflicts of Interest. No contract or other transaction between thecorporation and one or more of its directors or between the corporation and any other corporation, partnership, association or other organization in which one or more of the directorsof the corporation are directors or officers or are financially interested, shall be void or voidablesolely because of such relationship or interest or solely because such director or directors are
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present at or participate in the meeting of the Board of Directors or a committee thereof whichauthorizes, approves or ratifies such contract or transaction or solely because his or her or theirvotes are counted for such purpose, if:
A. The material facts as to the director's relationship or interest and as to the contract ortransaction are disclosed or are known to the Board of Directors or committee, and the Board ofDirectors or committee in good faith authorizes, approves or ratifies the contract or transactionby the affirmative votes of a majority of the disinterested directors, even though the disinteresteddirectors be less than a quorum; or
B. The material facts as to their relationship or interest and as to the contract ortransaction are disclosed or known to the members entitled to vote thereon, and the contract ortransaction is specifically approved in good faith by vote of such members; or
C. The contract or transaction is fair as to the corporation at the time it is authorized,approved or ratified by the Board of Directors, a committee of the Board of Directors or themembers.
Common or interested directors may be counted in determining the presence of a quorumat a meeting of the Board of Directors or a committee thereof which authorizes, approves orratifies such contract or transaction.
ARTICLE VI
Officers
Section 6.1. Officers. The officers of the corporation shall consist of a President, aSecretary and a Treasurer, each of whom shall be elected by the Board of Directors. A Chairmanof the Board, one or more Vice Chairmen, one or more Vice Presidents, and such other officersand assistant officers and agents as may be deemed necessary may be elected or appointed by theBoard of Directors from time to time. Any two (2) or more offices may be held by the sameperson, except the offices of President and Secretary.
Section 6.2. Duties. The officers of the corporation shall have the following duties:
A. Chairman of the Board. The Chairman of the Board, if one is elected, shall preside atall meetings of the Board of Directors and members and shall have such other duties and authorityas may be conferred by the Board of Directors.
B. Vice Chairman. The Vice Chairman, if one is elected, shall, in the absence ordisability of the Chairman of the Board, perform the duties and exercise the powers of theChairman of the Board. The Vice Chairman shall also perform whatever duties and havewhatever powers the Board of Directors may from time to time assign him/her. If more than oneVice Chairman is elected and the Chairman is absent or becomes disabled, the Board of Directorsshall choose one Vice Chairman to perform the duties and exercise the powers of the Chairman.
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C. President. The President shall be the chief executive officer of the corporation andshall have general and active management of the business and affairs of the corporation (otherthan the management of projects managed by a Project Management Committee), subject to thedirection of the Board of Directors. If a Chairman of the Board is not elected, the President shallpreside at all meetings of the Board of Directors and members.
D. Vice President. The Vice President, if one is elected, shall, in the absence or disabilityof the President, perform the duties and exercise the powers of the President. He or she also shallperform whatever duties and have whatever powers the Board of Directors may from time to timeassign him or her. If more than one Vice President is elected, one thereof shall be designated asExecutive Vice President and shall, in the absence or disability of the President, perform the dutiesand exercise the powers of the President and each other Vice President shall only performwhatever duties and have whatever powers the Board of Directors may from time to time assignhim or her.
E. Secretary and Assistant Secretary. The Secretary shall keep accurate records of theacts and proceedings of all meetings of the members and directors. The Secretary shall give allnotices required by law and by these Bylaws. In addition, the Secretary shall have general chargeof the corporate books and records and of the corporate seal, and he or she shall affix, or attestthe affixing of, the corporate seal to any lawfully executed instrument requiring it. The Secretaryshall have general charge of the membership records of the corporation and shall keep, at theregistered or principal office of the corporation, a record of the members showing the name,address, telephone number, facsimile number and electronic mail address of each member. TheSecretary shall sign such instruments as may require his or her signature and, in general, shallperform all duties as may be assigned to him or her from time to time by the Chairman, thePresident or the Board of Directors. The Assistant Secretary, if one is appointed, shall renderassistance to the Secretary in all the responsibilities described above.
F. Treasurer and Assistant Treasurer. The Treasurer shall have custody of all corporatefunds and financial records, shall keep full and accurate accounts of receipts and disbursementsand render accounts thereof at the annual meetings of members, and shall perform such otherduties as may be prescribed by the Chairman, the President or the Board of Directors. TheAssistant Treasurer, if one is appointed, shall render assistance to the Treasurer in all of theresponsibilities described above.
Section 6.3. Project Management Committees. In addition to the officers of thecorporation, the Board of Directors may, by resolution, establish one or more ProjectManagement Committees consisting of at least one officer of the corporation, who shall bedesignated chairman of such committee, and may include one or more other members of thecorporation. Unless elected or appointed as an officer in accordance with Sections 6.1 and 6.4 ofthese Bylaws, a member of a Project Management Committee shall not be deemed an officer ofthe corporation.
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Each Project Management Committee shall be responsible for the active management ofone or more projects identified by resolution of the Board of Directors which may include,without limitation, the creation or maintenance of "open-source" software for distribution to thepublic at no charge. Subject to the direction of the Board of Directors, the chairman of eachProject Management Committee shall be primarily responsible for project(s) managed by suchcommittee, and he or she shall establish rules and procedures for the day to day management ofproject(s) for which the committee is responsible.
The Board of Directors of the corporation may, by resolution, terminate a ProjectManagement Committee at any time.
Section 6.4. Election and Term. The officers of the corporation and the members of eachexisting Project Management Committee shall be appointed by the Board of Directors orappointed by an officer empowered by the Board to make such appointment. Such appointmentby the Board of Directors may be made at any regular or special meeting of the Board. Eachofficer shall hold office and each member of a Project Management Committee shall serve on suchcommittee for a period of one year or until his or her successor is elected and qualified or until hisor her earlier resignation or removal.
Section 6.5. Removal of Officers. Any officer or agent and any member of a ProjectManagement Committee elected or appointed by the Board of Directors may be removed by theBoard whenever, in its judgment, the best interests of the corporation will be served thereby.
Section 6.6. Vacancies. Any vacancy, however occurring, in any office or any ProjectManagement Committee may be filled by the Board of Directors.
Section 6.7. Compensation. The compensation, if any, of all officers of the corporationand of all members of each existing Project Management Committee shall be fixed by the Boardof Directors and may be changed from time to time by a majority vote of the Board of Directors.The fact that an officer is also a director shall not preclude such person from receivingcompensation as either a director or officer, nor shall it affect the validity of any resolution by theBoard of Directors fixing such compensation. The President shall have authority to fix thesalaries, if any, of all employees of the corporation, other than officers elected or appointed by theBoard of Directors and members of Project Management Committees.
ARTICLE VII
Books and Records
Section 7.1. Books and Records. The corporation shall keep correct and complete booksand records of accounts and shall keep minutes of the proceedings of its members, Board ofDirectors and committees of directors.
The corporation shall keep at its registered office or principal place of business, or at theoffice of its transfer agent or registrar, a record of the name, address, telephone number, facsimile
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number and electronic mail address of each member, together with the date of any withdrawal ortermination of such member's membership, or any conversion of such member's membership toemeritus status.
Each member shall be responsible for notifying the corporation of changes to suchmember's address, telephone number, facsimile number or electronic mail address.
Any books, records and minutes may be in written form or in any other form capable ofbeing converted into clearly legible written form within a reasonable time.
Section 7.2. Members' Inspection Rights. Any person who is a member, upon writtendemand under oath stating the purpose thereof, shall have the right to examine, in person or byagent or attorney, at any time during the corporation's usual hours for business, for any properpurpose as determined under the General Corporation Law of the State of Delaware, thecorporation's membership records and its other books and records and to make copies or extractstherefrom.
ARTICLE VIII
Nonprofit Status
The corporation is organized and shall be operated as a not-for-profit membershipcorporation organized under Delaware law. If the Board of Directors of the corporation elects toseek and obtains an exemption for the corporation from federal taxation pursuant to Section501(a) of the Internal Revenue Code, as amended (the "IRC"), and until such time, if ever, thatsuch exemption is denied or lost, the corporation shall not be empowered to engage directly orindirectly in any activity which the corporation believes would be likely to invalidate its status asan organization exempt from federal taxation under Section 501(a) of the IRC as an organizationdescribed in Section 501(c) of the IRC.
ARTICLE IX
Corporate Seal
The Board of Directors shall provide a corporate seal which shall have the name of thecorporation inscribed thereon, and may be a facsimile, engraved, printed, or an impression seal.
ARTICLE X
Amendment
These Bylaws may be altered, amended or repealed by the Board of Directors or by themembers, and new Bylaws may be adopted by the Board of Directors or by the members. Noalteration, amendment or repeal of these Bylaws shall be effective unless and until the corporationattempts, in good faith, to give notice to the members of the corporation of such alteration,
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amendment or repeal at least fifteen (15) days prior to the effective date of such alteration,amendment or repeal, which notice may be by electronic means.
ARTICLE XI
Limits on Liability of Directors
To the fullest extent permitted by the General Corporation Law of the State of Delaware,as the same exists or may hereafter be amended, a director of the corporation shall not bepersonally liable to the corporation or its members for monetary damages for breach of fiduciaryduty as a director.
ARTICLE XII
Indemnification of Officers and Directors
Section 12.1. Right to Indemnification. Each person who was or is a party or isthreatened to be made a party to any threatened, pending or completed action, suit, orproceeding, whether civil, criminal, administrative, or investigative (other than an action by or inthe right of the corporation), by reason of the fact that he or she is or was a director, officer ormember of the corporation, or is or was serving at the request of the corporation as a director,officer, employee, or agent of another corporation, partnership, joint venture, trust, or otherenterprise, shall be entitled to indemnification against expenses (including attorneys' fees),judgments, fines, and amounts paid in settlement to the fullest extent now or hereafter permittedby applicable law as long as such person acted in good faith and in a manner that such personreasonably believed to be in or not be opposed to the best interests of the corporation; provided,however, that the corporation shall indemnify any such person seeking indemnity in connectionwith an action, suit or proceeding (or part thereof) initiated by such person only if such action,suit or proceeding (or part thereof) was authorized by the Board of Directors.
Section 12.2. Advance Payment of Expenses. Expenses (including reasonable attorneys'fees) incurred by any person who is or was an officer, director or member of the corporation, orwho is or was serving at the request of the corporation as an officer or director of anothercorporation, partnership, joint venture, trust or other enterprise, in defending any civil, criminal,administrative or investigative action, suit or proceeding, shall be paid by the corporation inadvance of the final disposition of such action, suit or proceeding upon receipt of an undertakingby or on behalf of such person to repay such amount if it is ultimately determined that he or she isnot entitled under applicable law to be indemnified by the corporation.
Section 12.3. Right of Claimant to Bring Suit. If a claim under this Article is not paid infull by the corporation within ninety (90) days after a written claim has been received by thecorporation, the claimant may at any time thereafter bring suit against the corporation to recoverthe unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitledto be paid also the expense of prosecuting such claim. It shall be a defense to any such action(other than an action brought to enforce a claim for expenses incurred in defending any action or
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proceeding in advance of its final disposition where the required undertaking has been tendered tothe corporation unless such action is based on the claimant having committed an act involvingmoral turpitude) that the claimant has not met the standards of conduct which makeindemnification permissible under the General Corporation Law of the State of Delaware, but theburden of proving such defense shall be on the corporation. Neither the failure of the corporation(including its Board of Directors, independent legal counsel, or its members) to have made adetermination prior to the commencement of such action that indemnification of the claimant isproper in the circumstances because he or she has met the applicable standard of conduct set forthin the General Corporation Law of the State of Delaware, nor an actual determination by thecorporation (including its Board of Directors, independent legal counsel, or its members) that theclaimant has not met such applicable standard of conduct, shall be a defense to the action orcreate a presumption that the claimant has not met the applicable standard of conduct.
Section 12.4. Contract Rights. The provisions of this Article shall be a contract betweenthe corporation and each director, officer or member to which this Article applies. No repeal ormodification of these Bylaws shall invalidate or detract from any right or obligation with respectto any state of facts existing prior to the time of such repeal or modification.
Section 12.5. Rights Non-exclusive. The indemnification and advancement of expensesprovided by or granted pursuant to this Article shall not be deemed exclusive of any other rightsto which those seeking indemnification or advancement of expenses may be entitled under anybylaw, agreement, vote of members or disinterested directors or otherwise, both as to action in hisor her official capacity and as to action in another capacity while holding such office.
Section 12.6. Insurance. The corporation may purchase and maintain insurance on behalfof any person who is or was a director, officer, member, employee or agent of the corporation, oris or was serving at the request of the corporation as a director, officer, employee or agent ofanother corporation, partnership, joint venture, trust or other enterprise against any liabilityasserted against him or her and incurred by him or her in any such capacity, or arising out of his orher status as such, whether or not the corporation would have the power to indemnify him or heragainst such liability under the provisions of this Article or of applicable law.
Section 12.7. Definitions. For purposes of this Article, references to "the corporation"shall include, in addition to the resulting corporation, any constituent corporation (including anyconstituent of a constituent) absorbed in a consolidation or merger which, if its separate existencehad continued, would have had power and authority to indemnify its directors, officers, andemployees or agents, so that any person who is or was a director, officer, employee or agent ofsuch constituent corporation, or is or was serving at the request of such constituent corporationas a director, officer, employee or agent of another corporation, partnership, joint venture, trustor other enterprise, shall stand in the same position under this Article with respect to the resultingor surviving corporation as he or she would have with respect to such constituent corporation ifits separate existence had continued, and references to "other enterprises" shall include employeebenefit plans; references to "fines" shall include any excise taxes assessed on a person with respectto any employee benefit plan; and references to "serving at the request of the corporation" shallinclude any service as a director, officer, employee or agent of the corporation which imposes
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duties on, or involves services by, such director, officer, employee, or agent with respect to anemployee benefit plan, its participants, or beneficiaries; and a person who acted in good faith andin a manner he or she reasonably believed to be in the interest of the participants and beneficiariesof an employee benefit plan shall be deemed to have acted in a manner "not opposed to the bestinterests of the corporation" as referred to in this Article.
Section 12.8. Continued Coverage. The indemnification and advancement of expensesprovided by, or granted pursuant to this Article shall, unless otherwise provided when authorizedor ratified, continue as to a person who has ceased to be a director, officer or member and shallinure to the benefit of the heirs, executors and administrators of such person.
ARTICLE XIII
General Provisions
Section 13.1. Checks. All checks or demands for money and notes of the corporation shallbe signed by such officer or officers or such other person or persons as the Board of Directorsmay from time to time designate.
Section 13.2. Fiscal Year. The fiscal year of the corporation shall be fixed by resolution ofthe Board of Directors.
Section 13.3. Loans. No loans shall be contracted on behalf of the corporation and noevidence of indebtedness shall be issued in its name unless authorized by a resolution of the Boardof Directors. Such authority may be general or confined to specific instances.
Section 13.4. Deposits. All funds of the corporation not otherwise employed shall bedeposited from time to time to the credit of the corporation in such depositories as the Board ofDirectors shall direct.
Section 13.5. Contracts. The Board of Directors may authorize any officer or officers,agent or agents, to enter into any contract or execute and deliver any instrument on behalf of thecorporation, and such authority may be general or confined to specific instances.
Section 13.6. Counterpart Execution: Facsimile Execution. Any document requiring thesignature of the directors and/or members may be executed in any number of counterparts withthe same effect as if all of the required signatories had signed the same document. Suchexecutions may be transmitted to the corporation and/or the other directors and/or members byfacsimile and such facsimile execution shall have the full force and effect of an original signature.All fully executed counterparts, whether original executions or facsimile executions or acombination, shall be construed together and shall constitute one and the same agreement.
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THESE BYLAWS WERE READ, APPROVED AND ADOPTED BY THE BOARD OFDIRECTORS OF THE APACHE SOFTWARE FOUNDATION ON THE __ DAY OF_______, 1999.
________________________________________________________, Secretary
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Exhibit B
The Apache Software Foundation
Membership Application
Thank you for your interest in The Apache Software Foundation (the"Foundation"). To apply for membership, please complete this applicationand send it by facsimile to the Foundation at +1-410-803-2258, or send aphotocopy by regular mail to The Apache Software Foundation,1901 Munsey Drive, Forest Hill, MD 21050-2747, U.S.A. Please read thisdocument carefully before signing and keep the original for your records.
Fullname: ___________________________
MailingAddress:___________________________ Telephone: ___________________
___________________________
___________________________ Facsimile: ___________________
___________________________
Country:___________________________ E-Mail: ___________________
Membership in the Foundation carries certain responsibilities. Yourmembership is conditioned upon your acceptance of the Foundation'sBylaws (available at <http://www.apache.org/foundation/bylaws.html>).
I have read and understand the Bylaws of The Apache Software Foundation andI wish to become a member in accordance with those Bylaws.
Please sign: ________________________________ Date: _____________________